299 F.2d 389 (8th Cir. 1962), 16777, Hance v. United States

Docket Nº:16777, 16778.
Citation:299 F.2d 389
Party Name:Clifford J. HANCE, Jr., Appellant, v. UNITED STATES of America, Appellee. Bob Neal CARSON, Appellant, v. UNITED STATES of America, Appellee.
Case Date:February 14, 1962
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 389

299 F.2d 389 (8th Cir. 1962)

Clifford J. HANCE, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

Bob Neal CARSON, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 16777, 16778.

United States Court of Appeals, Eighth Circuit.

February 14, 1962

Page 390

David C. Harrison, Salem, Mo., for appellant Clifford J. Hance, Jr., and Dorman L. Steelman, Salem, Mo., was with him on the brief.

Frank B. Green, St. Louis Mo., for appellant Bob Neal Carson, and Morris A. Shenker, Murry L. Randall and Lawrence J. Lee, St. Louis, Mo., were with him on the brief.

J. Whitfield Moody, Sp. Asst. U.S. Atty., Kansas City, Mo., for appellee, and F. Russell Millin, U.S. Atty., Kansas City, Mo., was with him on the brief.

Before VOGEL and RIDGE, Circuit Judges, and GRAVEN, Senior District judge.

RIDGE, Circuit Judge.

In Case No. 16777, appellant Clifford J. Hance, Jr., appeals from his convictions and sentences for uttering a counterfeit obligation of the United States in violation of Section 472, Title 18 U.S.C.A., and for conspiracy in relation to counterfeiting in violation of Section 371, Title 18 U.S.C.A. In Case No. 16778, appellant, Bob Neal Carson, appeals from his conviction and sentence for the same conspiracy. Appellants having been jointly indicted, tried and convicted by jury verdict, their appeals have been consolidated for disposition in this Court. Appellants will hereinafter be referred to as defendants.

Nine persons, including defendants, were named in a three-count indictment charging substantive offenses and conspiracy in violation of the counterfeiting laws, supra. Each of the defendants designated therein, except Hance and Carson, entered a plea of guilty to one or more of such charges. In these appeals Hance and Carson make no challenge as to the sufficiency of the evidence to sustain their respective convictions, nor as to the rightness of the sentences imposed on them. Their assignments of error relate to procedural matters, i.e. (1) the trial court erred in refusing to permit their defense counsel to make full inspection of all documents and reports of an undercover Secret Service Agent who testified for the Government at their trial; (2) that the trial court erred in refusing to make the grand jury testimony of that agent available to their counsel, and erred in refusing to examine the transcript of that witness' grand jury testimony in camera for inconsistency with his trial testimony; and (3) that such court erred by unfairly commenting on the evidence in its charge to the jury. Defendant Carson proffers the additional assignment, that the trial court erred in instructing the jury as to his interest as a witness in his own behalf

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in the outcome of the case. The first three assignments supra are stated analogously by appellants in their respective assignments of error. Hence we shall treat with them singularly. Facts appearing in relation thereto will be stated in the course of this opinion.

JENCKS ACT VIOLATIONS

Secret Service Agent Richard Roth, a Government witness who operated for some time as an undercover agent and made contact with various members of the counterfeiting conspiracy here considered, testified at the trial of defendants. From time to time he refreshed his recollection by referral to a typewritten memorandum prepared from notes made by him during the course of his undercover activities. While testifying, Roth also had in his hands other papers consisting of rough, handwritten notes and copies of other typewritten reports made by him. During the course of Roth's direct testimony counsel for defendant Carson, addressing the trial court, remarked: 'It is obvious that the witness is reading from some type of report.' Thereupon, counsel for both defendants jointly requested permission of the court to see 'those notes at this time.' The Court ruled that such request was premature and that counsel would be permitted to see the report 'at the proper time.' After witness Roth completed his direct testimony counsel for defendant Carson commenced his cross-examination of Roth by asking: 'Mr. Roth, did you make any reports in connection with the investigation that you have been testifying about? A. Yes, I did.' Thereupon, counsel for defendants, without further examination of witness Roth as to the nature, character, or time when any such reports were made, jointly moved 'that the Government supply us with a copy of the reports which Mr. Roth has made.' Thereafter, considerable colloquy out of the hearing of the jury (covering thirty-three pages of the transcript of the trial) ensued between court and counsel. Summarily, it may be stated that after the above broad request was made, counsel for the Government stated:

'Your Honor, the request is rather broad and I believe his testimony which he has offered, probably could be covered in two or more of the reports. I object to the handling of the reports on that broad basis.'

The Court then said:

'Well, you will have to produce the various reports that have been made by this witness. If there is any portion of them that is objected to, you must direct my attention to it and state your objection; otherwise the reports that have been made in connection with the investigation are available for inspection and examination of the defendants' counsel.'

Counsel for the Government then stated:

'We object to the introduction of these, or the turning of the reports to counsel for the defense because they contain therein references to investigative technique and procedure which, of course, is confidential and were received on a confidential basis which does not refer to or in any way covered by the testimony (sic) of the agent and we object to that extent.'

Thereafter, all the documents that witness Roth had in hand while testifying were submitted to the trial court for an in camera examination. Counsel for the Government affirmed to the trial court that such instruments constituted all documents and reports made by agent Roth during the three-month course of his undercover activities, and no contention contra thereto is made in this case.

During the colloquy between court and counsel, counsel for defendant Carson made the following request to the court:

'Mr. Green: Now, then, at this time I would move the Court to have furnished on behalf of Bob Carson any and all written reports, memoranda, and records, written or dictated, by Mr. Roth, and then also any

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and all records or memoranda or reports which are pertaining to, memoranda or reports of Mr. Roth. That is, any additional memoranda or reports which are based upon the original reports of Mr. Roth.

'The Court: Made by whom?

'Mr. Green: Made by anyone, either-- in connection with the investigation of this case, and also that we be made available to the testimony of Mr. Roth to (sic) the grand jury; that is, testimony given to the grand jury be made available to us.

'The Court: Your request as to the transcript of the testimony before the grand jury is denied. There has been no showing of any cause why that report should be made available for examination to defendants' counsel or anybody else.

'As to the request for reports made by other persons predicated upon information which may have been provided by Mr. Roth in connection with contemporaneous memorandum made by him, that request is also denied as being outside of the scope of-- Section 3500 of Title 18.'

Defendant Carson's counsel further stated:

'Mr. Green: If the Court please, at this time, in view of the Court's statement, I would advise the Court that the purpose of our asking for this information, all this data, is to determine whether or not there are any inconsistencies in Mr. Roth's testimony, and the basis of such inconsistencies would be written reports he made or, as I have previously indicated, the Grand Jury testimony. Now, if we are deprived of every bit of his testimony (sic) it would be impossible for us to determine whether or not there is any inconsistency . . .'

Thereafter, counsel for defendant Hance said:

'If the Court please, at this time and in connection with the request, I would like to make a move (sic) for all reports, not only supplied by the witness Roth but any reports based upon the reports which he may have made; any and all memoranda, either typed, dictated or written in longhand, and also a request for testimony given by the Grand Jury hearing upon which the indictment before us was based. * * *'

'The Court: All right. The same ruling will be made in connection with your request as I have already made in connection with the request of Mr. Green, with the same limitations and the same indications of what my ruling will be.'

Thereafter, the trial court noted in the record that the request so made by counsel was most general and in the light of the objection made by counsel for the Government he would make an in camera examination of all such notes and memoranda to ascertain whether any parts thereof related to the subject matter of the testimony given by Roth. This, the trial judge did during an overnight recess of the trial.

After such in camera review of the material delivered to the trial court, the same was divided into groups and designated by the Court as 'Reports A, B, C, D, E, and F.' The Government was directed by the Court to deliver to counsel for defendants 'Report B' 1 only and to retain all the other documents in the manner and fashion in which the trial court had separated and designated

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them, for review by this Court on appeal, as provided in Section 3500(c), Title 18 U.S.C. In connection with this appeal, all such...

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